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Controversy Continues to Surround Yucca Mountain

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Earlier this month, the United States Court of Appeals for the District of Columbia weighed in to give a new twist to the never-ending saga that is Yucca Mountain. The court issued a writ of mandamus to compel the Nuclear Regulatory Commission (NRC) to resume the licensing process for the Yucca Mountain nuclear waste repository in Nevada. In the decision, the court accused the Obama Administration of flouting the law and specifically raised separation of powers issues stating that the executive may not ignore a statutory mandate due to policy differences.

Background

Through the 1983 Nuclear Waste Policy Act (NWPA), Congress created a process for the approval of a repository for the long-term storage of nuclear waste generated from civilian nuclear power production. Although the NWPA originally named five potential sites, it was later amended to specifically name Yucca Mountain as the designated site for the country's long-term nuclear waste storage. Under the law, the Department of Energy (DOE) was to begin accepting waste at the Yucca Mountain site in 1998. However, in the 30 years since the law passed, the project has been delayed by court challenges and changing political winds.

In 2002, the DOE formally recommended the Yucca Mountain site and President Bush signed a joint resolution approving the site for a repository. In 2008, near the end of the Bush Administration, the DOE formally filed the license application with the NRC, which is charged under the statute for license approval.

Early in the Obama Administration, the DOE sought to withdraw the Yucca Mountain license application and Congress cut off funding for the program. The Nuclear Licensing Board denied the DOE's request to withdraw the license application, but the NRC did suspend work on the application, citing Congress's defunding of the program.

What's Next for Yucca Mountain?

The court's decision, which will certainly be appealed, requires the NRC to move forward with the license approval process, in particular because Congress neither legislatively repealed the designation of Yucca Mountain nor reallocated the $11 million dollars left in the account to fund the program. The court in particular criticized the executive branch for ignoring the will of Congress through both the NWPA and the appropriation of funds.

It appears that after several years of inactivity the Yucca Mountain saga will be played out in the coming months through legal appeals, Congressional action (or inaction), and through the regulatory process at the NRC.

We envision the executive and legislative branches to begin the following activities:

The Obama Administration will likely appeal the court decision, although the legal issues of the separation of powers could impact other pending cases.

In response to the court noting that Congress has not completely defunded the program, Senate Majority Leader Harry Reid may press for the defunding of the project in this year's appropriations process. Meanwhile, the Republicans in the House have already announced plans for the first oversight hearing (on September 10, 2013) with the chairman of the NRC on the implementation of the court decision.

Representatives from both chambers will likely engage in a healthy public debate on whether the $11 million dollars currently appropriated to the NRC is sufficient funding to render a decision on the license.

For every year the courts, Congress and the Administration tangle over the Yucca Mountain site, the federal government owes the utility industry between $300 and $500 million dollars for the failure to accept nuclear waste shipments as required by the 1983 law. The amount of money at stake and the importance of the issue to our nation's nuclear energy providers and their customers ensures that this issue will have many fits and starts in the months to come. For more information on the issue, please contact Andrew Wheeler, Andy Ehrlich or Jim Spaanstra.

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